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Second Circuit Updates – May 20, 2016

There were three summary orders from the Second Circuit. Of particular interest is the Court’s order in United States v. Choudhry, No. 15-1737-cr. There a panel of the Second Circuit (Newman, Cabranes, Lohier, Jr.) addressed, among other issues, whether jury instructions regarding the charge of transmission of a threat to injure were erroneous in light of the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015). As I’ve written about here before, and as this case demonstrates, courts are still struggling with the boundaries of Elonis.

The District Court in Choudhry gave the following instruction:

“[a] statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement [who] was familiar with the context of the threat would interpret it as a threat of injury.”

But, as the Second Circuit noted, in Elonis, the Supreme Court found that a conviction under 18 U.S.C. §875(c) “requires more than proof ‘that a reasonable person would regard [the] communications as threats.’” (citing Elonis, 135 S. Ct. at 2012). Rather, the government must show that the defendant transmitted the “communication for the purpose of issuing a threat, or with knowledge that the communication [would] be viewed as a threat.” Elonis, 135 S. Ct. at 2012.

Although the Second Circuit agreed that the jury instructions were erroneous, it found that Choudhry did not establish plain error since the court “had no doubt that a rational jury, properly instructed, would have found Choundhry had subjective intent to issue a threat or knowledge that his communication would be viewed as a threat.”

In United States v. Ramlochan, 14-605-cr, the Court remanded the case and directed the district court to revise both the term of supervised release and the restitution order. Specifically, the court found (and both parties agreed) that the district court “improperly ordered restitution based on intended, rather than actual, loss.”

United States v. Richards, 15-567-cr, addressed whether a 360-month sentence was procedurally and substantively unreasonable for a defendant charged with sexual exploitation of a child. The court rejected Richards’s arguments.